41 Ind. App. 452 | Ind. Ct. App. | 1908
Lead Opinion
Action by Eccles G. Watson against the United States Benevolent Society. The amended complaint is in one paragraph. It is therein averred that the appel
“sickness or disease that begins after the expiration of the above term, becomes strictly confined to the house and totally disabled and prevented from transacting any and every kind of business, upon satisfactory proofs to the society of such confinement or total disability, said member shall be indemnified for the number of consecutive days, after the first week, that he is actually confined to the house, subject to the personal calls of a registered physician and in good standing, not to exceed thirty [weeks] during one year from the beginning of any illness at the rate of $7 per week for the first eight weeks, $10 per week for the next, eight weeks, $12 per week for the next eight weeks, and $15 per week for the remaining six weeks of the aforesaid period;”
that on December 21, 1904, while said contract was in full force, appellee became sick with lagrippe and bronchitis, and was confined to the house subject to the personal calls of a registered physician in good standing, etc., and prevented for twenty weeks from performing his duties as porter in a restaurant; that he performed all the conditions of said contract on his part, made proof of said disability, and demanded payment, which was refused.
Appellant answered: (1) General denial; (2) that by the terms of the contract sued upon all premiums are due and payable on the first day of each and every month, and that a failure to pay said premium when due will immedi
The issue thus formed was submitted to a jury, and a verdict for $198.72 returned for appellee, and judgment rendered thereon.
The only error assigned is based upon the action of the court in overruling the motion made by appellant for a new trial. Grounds stated for a new trial, and not waived, are that the verdict is not sustained by sufficient evidence and is contrary to law, and that a peremptory instruction requested by appellant should have been given.
The evidence is in the record. It includes a policy or certificate of membership issued to appellee by the United States Benevolent Society of Saginaw, Michigan, dated December 6, 1899, and containing terms heretofore quoted, together with a great many others. Fifty-four receipts evidencing payments of monthly assessments were also in evidence. One of these is dated November 1, and one December 1, 1904, These are signed by J. Wesley Jones, who repre
Dissenting Opinion
Action by appellee against appellant, on a certificate of insurance issued to him in a combination policy of insurance, providing for benefits for loss of time from accident, for loss of time occasioned by sickness and for death benefit, to recover for loss of time occasioned by sickness.
The clause in said policy of insurance relating to sick benefits, is as follows:
“If at any time after this certificate has been maintained in continuous force and effect for ninety consecutive days, the aforesaid member shall, by reason of sickness or disease that begins after the expiration of the above term, become strictly confined to the house and totally disabled and prevented from transacting any and every kind of business, upon satisfactory proofs to the society of such confinement and total disability, said member shall be indemnified for the number of cousecutive days, after the first week, that he is actually confined to the house, subject to the personal calls of a registered physician in good standing, not to exceed thirty [weeks] during one year from the beginning of any illness, at the rate of $7 per week for the first eight weeks, $10 per week for the next eight weeks, $12 per week for the next eight weeks, and $15 per week for the remaining six weeks of the aforesaid period.”
The policy also contained the following conditions:
“Assessments are to be paid monthly in advance. * * * The failure to pay any assessment when due, will immediately terminate this membership and insurance. The acceptance of any past-due assessment is optional with the society and shall not in any ease be a waiver of the forfeiture of this contract and insurance, but shall be construed and have the same effect as if a new application had been made and a new certificate issued on the day following such acceptance, and for the payment and remittance of such past-due assessment the insured constitutes the local secretary his agent. ’ ’
It is insisted that the instruction to return a verdict for the defendant should have been given, because the appellee failed to give in evidence the policy of insurance upon which the action was founded, as shown by the bill of exceptions. The bill of exceptions states that “the defendant in the above-entitled cause filed his motion for a new trial therein, and stated as one ground and reason therein specified, in specification number two, that the yerdiet of the jury is not sustained by sufficient evidence, to wit, the original certificate of insurance, which is in writing, was not read in evidence to the jury. Counsel for appellee offered and had marked by the reporter said original policy of insurance, and said he would introduce the same in evidence, but - did not read in evidence to the jury said policy of insurance, or any part thereof; that said original policy of insurance, or any part thereof, was not read by any one, during the trial of said cause, to the jury.”
The policy, as hereinbefore set out, contained certain material provisions and conditions, the proof of which de